Suit upon a note, with a second paragraph •in the complaint for the price of land sold and conveyed, by a third person, upon a promise on the part of the purchaser to pay the price of the same to the plaintiff.
There was no set-off, ¡counter-claim, or failure of consideration alleged in the answer, ¡and, hence, no evidence of such was admissible.
In-one view of the evidence, if the record contains it all, the case was made out on the part of the plaintiff, and we -must suppose the Court below considered that view to be the right one, ¡and acted upon It. The Court may have inferred that a promise of payment had been made. This presumption must be indulged in favor of the judgment below.
But we can not regard the record as -containing the evidence. See Hamilton v. Railsback, at this term.
It may be obseiwed that a conveyance fraudulent as to ¡'creditors may ¡be valid between the parties, and be enforced as between them; and especially in favor of a third person to whom a promise, ¡growing out of such transaction had been made. Lamb et al. v. Donovan, 19 Ind. 40.
The judgment -mtist be affirmed, with costs, and one-quarter of 1 per cent, damages.
(1) Petition for rehearing overruled, August 26, 1863.